Philosophy against Misosophy



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3. Contracts, Coercion, and Condo Boards: A Reply to Stuart Burns*

Anthony Flood

I thank Stuart Burns for his critical essay and Geoffrey Klempner for publishing this reply.

A reminder of context is in order. The question of the moral justifiability of "redistributing" resources looms on the horizon of any exploration of the ethical dimension of offering the redistributionist benefit. Therefore, even if Professor Wolff did not intend to justify redistributionism in the original paper on which Dr. Klempner invited me to comment, failure of justification leaves the exploration suspended midair. Thinking that was a point worth making, I accepted rather than declined the invitation to comment. Now to Mr. Burns's comments.

Mr. Burns finds in Professor Wolff's argument a fallacious shift from the observation of fact, "A has fewer resources than B," to the normative claim, "A is *disadvantaged* with respect to B." From there it is no great leap to "A ought not to be disadvantaged" and perhaps "A ought to have no fewer resources than does B." Exposing that fallacy, however, and the egalitarianism that Professor Wolff presupposes are not central to my case against redistribution. My point has been that if B is *not responsible* for A's being disadvantaged, then C, D, E, ... n (severally, or calling themselves "society") have no warrant for picking B's pocket to improve A's condition.


Contracting Equivocationitis?

Mr. Burns seems to be of two minds about "implied social contract." He suggests it, retracts it, and then gingerly defends it by speculating about what governmental employees think. That is, if they think they have an obligation to provide the services for which taxes are collected, Mr. Burns's argument seems to be, a contract of some sort must be in force, perhaps social, perhaps implicit. "I would love to see an argument," he writes, "that explains why the many social obligations that we all readily accept do not demonstrate the existence of an implied contract." The short answer is that "ready acceptance" is not a reliable guide to what obligations we do, or do not, have. Now for the longer one.

Once we stipulate what we mean by a word, we may not equivocate. If we use the word "contract" to refer to arrangements whereby we voluntarily deploy our resources or put our property at risk in the expectation of mutual gain, then we may not also use that word to refer to arrangements wherein we do not do these things.

Some contracts may be no more than promises and signaled by a simple handshake. Not every human relationship, however, implies a contract. Nor is every set of mutual expectations. For example, a gentleman named Vinny may drop by my store on Tuesdays expecting to collect payment for "protection services." Our relationship, however, is neither social nor contractual, but anti-social and criminal. Freedom from Vinny's violence does not cost him anything to "provide," so I owe him nothing in exchange for refraining from threatening me. By intending to charge me for what is mine by right he repudiates the moral point of view.

We ought not, then, stretch the word "contract" to cover both my financial relationship to Vinny and my financial relationship to, say, my bodyguard. Philosophers seek clarity in their efforts to understand. They undermine that goal when they equivocate, that is, use one word to refer to two radically different things, for example, a moral principle and its violation.

In "Redistributionism, Continued,"[1] I distinguished between moral ownership and mere physical possession. Along the same lines I distinguish between morally enforceable coercion and the initiation of force. When I am forced to fulfill an obligation on which I am reneging, I may *feel* just as I would were someone to initiate force against me. The sources of those similar feelings, however, are categorically different, morally speaking. The failure to see the difference signals the absence of the moral point of view.

Mr. Burns is inclined, albeit reluctantly, to conclude that society requires that some individuals impose their decisions on others, much as Vinny imposes his on me. Such is the perennial anti-libertarian suspicion, and I commend Mr. Burns for airing it candidly. Nourishing it, however, is the presupposition that society is an agent apart from its constituent members, one that faces moral choices that they do not.

So when Mr. Burns refers causally to "collective decision-making," I am not sure what the word "collective" is doing. His decision, mine, and that of others to carry on this dialogue, for example, do not fuse into a "collective decision." Similarly, therefore, there cannot be any "collective decision to be charitable" (on which more presently).

To impose a decision by initiating force is to impose a cost. It is forcibly to divert scarce resources into paths that the owner does not prefer, thereby retarding or altogether frustrating the achievement of his goals. My moral intuitions suggest that the would-be imposer is obliged to justify his prospective imposition; the prospective patients of this operation do not have to demonstrate their right to control physically what they own morally. I presume the reader has similar intuitions. That presumption may be mistaken.

Mr. Burns claims to "agree with Mr. [Hubertus] Fremerey's observations that Mr. Flood misunderstands the difference between 'contractual' and 'social' relations." Perhaps Mr. Burns can tell me what Mr. Fremerey means. I grant that I may be simply wrong when I regard contractual relations as a species of social relations, but surely that qualifies as some sort of understanding. How is it a misunderstanding?

People do have moral obligations before they enter into contracts. Each party expects that the other will abide by the contract's terms and, each hopes, not just because of their fear of penalties. You and I cannot enter into an arrangement to exchange titles unless each of us understands that neither may take by force or stealth what the other one has, even if he can. Generally, members of society share an understanding of their moral relationship to each other as requisite to their respective hopes of achieving a good life. That understanding may be unarticulated or implied. But mere understanding does not a contract make.

      To satisfy positive, contractually based obligations must cost something. It costs nothing, however, to fulfill negative moral obligations. Recall my example of Vinny the extortionist. He wants to charge me for what is naturally mine and costs him nothing to honor. Formal contracts are impossible without "refraint,"[2] the individual's moral commitment to refrain from violating rights. Being prior to contract, refraint is not a contract, not even an "implicit" or "social" one.

I grant the possibility that I am wrong when I say that redistribution is equivalent to robbery. In doing so, however, I am hardly contradicting my other statement, with which Mr. Burns expressed full agreement, namely, "forcible expropriation is justifiable only to restore property to its rightful owners, not to deprive them of it." To equate robbery with redistribution does not prevent me from distinguishing robbery from restitution.


Paying Common Charges: A Taxing Experience? (Or, Not-So-Sweet Charity?)

Before discussing Mr. Burns's imaginary condominium board (with its charitable majority), let us remind ourselves that Professor Wolff was not seeking the protocols of offering charity. That would have exposed him to the rejoinder, which I would have been all too pleased to make, that charity not only should be voluntary, but can only be so. The transfer of resources, insofar as it is forced, prevents us from reasonably counting this act as one of charity toward its beneficiary, either on the part of the expropriated resource owner or the redistributor. Redistributionists interpret redistributed benefits as *entitlements*. In the normal meaning of words, no one is entitled to another's charity, and no one can give in charity to another that to which he is entitled.

As someone who has sat on a condo board since 1985, I find Mr. Burns's scenario lacking in real reference. I do not find in the collection of common charges a form of "redistribution" from which we may extrapolate a justification of State redistribution.

Charitable expenditures by organizations such as condo boards require a compelling business rationale. Board members are fiduciaries, and as such they must exercise extreme caution when proposing to use their principals' money for gift-giving. Having to draw up and implement budgets, board members know how quickly the uncertainty of future increases in costs (e.g., salaries, fuel, water, etc.) throws charitable sentiments into cold perspective. They therefore do not for very long entertain purely charitable gestures, such as the handicap access ramp of Mr. Burns's example.

Condo unit owners freely obligate themselves to pay common charges. They have not been coerced into agreeing to pay them, even if they may need to be coerced into abiding by that agreement. Coercion becomes a justifiable possibility, however, only if a unit owner reneges on that freely assumed commitment.

Tickets for sporting events often contain printed statements to the effect that the event's sponsor may electronically broadcast the patron's image without compensating him. Such is the "package deal" that comes with one's ticket. No patron may legitimately claim later that the broadcaster "invaded his privacy." Similarly, there is no violation of fiduciary trust if the majority of board members vote in favor of a charitable venture. Caveat emptor. Read the fine print.

Mr. Burns's focus on "a signed legal document" or "a piece of paper" is therefore misplaced. That is not what distinguishes a board of fiduciaries that arises through market transactions from a State that recognizes (in principle) no limitation on its prerogative to override such transactions. When people sign and file their tax returns "voluntarily" they contribute to the fiction that the government's has a "signed contract" to cloak its depredations. The relevant test of contract is whether an interpersonal relationship is formed peacefully, not whether it is memorialized on paper.


The State: Love It or Leave It?

Mr. Burns finds it "easy to imagine a challenged State simply mandating that every resident either sign an explicit legal contract or leave the jurisdiction." When it comes to the right to demand or mandate anything, however, imagination is not germane. Either the demand is justifiable or it is not. By what warrant does a State mandate that its subjects "pay up or leave" as, for example, a landlord might announce to his tenant? The State may have the physical power to enforce its demands, but power is not self-justifying. On the local level, a bully has analogous power, but no corresponding right, to push others around. Since taxing entities ring our planet, there is little short-term hope of finding refuge from taxation. That omnipresence, however, does not prove it moral rightness. Might does not make right, to coin a phrase.

As with chattel slavery, which was once as global as taxation is, the only coherent goal with respect to the latter, as I see it, is not containment but abolition. Let parasites and aggressors "up and leave," but let producers and traders be. I see no basis for Mr. Burns's proposition that by remaining on the territory over which a government claims a monopoly of force, I am "implicitly agreeing" with that relationship. (I may, of course, "recognize" that hegemony the way, say, Hezbollah "recognizes" the State of Israel.)

When I contract with others in the expectation of enjoying certain benefits, I may also simultaneously generate obligations to pay for things I may not want. Taxation, however, does not enter peoples' lives that way. By the time it is a live issue for anyone, he discovers that his "social security" number is already his "taxpayer identification" number. It was never optional. There is no correlation between what you pay in taxes and what you want from the State. Any satisfaction is purely coincidental and comes at the cost of the many other satisfactions one is forced to forego.

Peaceful producers and traders are "justified in employing coercive expropriation to recover" fees to which they are contractually due, as long as they do so in a way that is not itself criminal. Nothing justifies impulsive, disproportionate violence in the name of restitution. For example, the man who knocks another man down and takes a watch from him may, for all passers-by know to the contrary, not be a mugger at all, but rather a mugging victim retrieving his watch from one. The uncertain passers-by will not responsibly interfere . . .  unless the mugging victim with the upper hand seems about to inflict deadly force against the subdued mugger. One purpose of a system of courts is to resolve such ambiguities.

Mr. Burns's question, "does . . . the management structure [have] the moral justification to employ coercion?," receives an affirmative answer, then, but I hasten to emphasize the coercion's defensive quality. It does not initiate force or violence, but rather defends against or responds to it. (In this case, "it" refers to the fraud committed by the reneging unit owner, fraud being a species of theft.) As I wrote in my earlier contribution to this discussion, "... the State has no resources it did not acquire by force or the threat thereof. The State is not a family whose individual members have voted on where to go for their summer vacation and who now must cooperate to make the trip a success. Neither ... is the State a club to which we owe dues."[3] I must now add: And neither is the State like a condominium board of managers who are fiduciaries of unit owners at whose pleasure they sit.

If anyone thinks that the ladies and gentlemen who wield redistributory power are related to taxpayers as fiduciaries to principals, philosophy cannot help him.  


1 Anthony Flood, "Redistributionism Continued," Philosophy Pathways, No. 56, 20 April 2003.

2 In commenting on the ethics of Irving Babbitt who referred to the "Will to Refrain," Henry Hazlitt observed "a curious gap in the English language. The verb restrain has the noun-form restraint, but the verb refrain (though similar in origin through the Latin and the French) has no noun-form refraint. For the noun we are obliged to fall back, confusingly, on restraint (which implies coercion by others) or, asymmetrically, on self-restraint or abstention. The noun refraint would serve a useful purpose." The Foundations of Morality, Los Angeles: Nash, 1964, p. 377, n. 12. See note 12 of Chapter 22:  .

3 Tony Flood, "A Comment on Professor Wolff's 'Four Forms of Redistribution,'" Philosophy Pathways, No. 53, 9 March 2003.

(c) Anthony Flood 2003  


*This essay first appeared in Philosophy Pathways, Number 61, 29 June 2003    It is a rejoinder to Stuart Burns, "Redistributionism: Comments on the Recent Debate," Philosophy Pathways, Number 60, 15 June 2003


‘Redistribution’ as Euphemism